Intellectual property is a tricky business in publishing, and 2020: A Publishing Odyssey looked to demystify the legal world by having representatives from both sides on hand: Mark Cruikshank of legal firm Brodies LLP, and Hugh Andrew of Birlinn.
“Intellectual property is at the bedrock of what all publishers do.”
“Intellectual property is at the bedrock of what all publishers do,” says Mark. It protects the way in which creations are expressed; they are an incentive to create. It’s an initiative-based industry.
There are three main strands: copyright, trademarks/passing off, and defamation. He has experience with many publication disputes, and aims to share pointers on things that frequently come up. To give a little context, he takes us through two high profile copyright disputes: The Da Vinci Code and Harry Potter.
The Holy Blood is a non-fiction book that the authors believe was copied for The Da Vinci Code; it was ruled that any copying was ‘copying of an idea’ rather than the expression of the idea, as his take was fictional. It was too high a level of abstraction to amount to copyright infringement. This sounds like a simple concept but it’s hard to do in practice.
JK Rowling was accused of copying aspects of the plot of a book called Willy the Wizard. There were similarities: boarding school, magic, and so on, but this did not match to the extent of the claim. The case was thrown out of court on a technicality as Paul Gregory Allen failed to pay security for costs, though Rowling’s initial attempt to get it thrown out was overruled. It’s a case of it not being quantitative, but qualitative in comparison.
How are trademarks relevant to publishing? Titles, publisher names, logos, images on covers. Passing off has a three part test (see below). Defamation is slightly different in Scotland, but it’s increasingly a tricky modern issue given online advances. The legal test is: a publication which lowers a person in the estimation of a right-thinking member of the public.
“This is the absolute core of what publishing is about.”
With this crash course to intellectual property, Hugh takes over. “Everyone should be here,” he notes. “This is the absolute core of what publishing is about.” Birlinn has published many, many a book; one was touching on the legal ruling on Abdel Baset al-Megrahi, a book that was discussed in government by someone within twelve hours of publication. Another was on a little ginger cat. “Guess which is the most expensive case I’ve had?”
The Tobermory Cat case is a prime example of how it’s the least expected things that can catch you out in intellectual property, so he has a number of quickfire tips: Don’t put a logo of a football team on the cover of a book; do a parody of a cover – that gets people going; authors don’t necessarily know the intricacies of copyright and can often unknowingly pillage others’ work as inspiration without your knowledge; fonts aren’t safe either.
The one real horror, says Hugh, is defamation because people feel very strongly about it. If you jump on something that opens you up to a defamation claim, you have to cover yourself on every base. One author put his wife in fiction – she was senior in the newspaper industry – and changed her name but was still clearly identifiable in these ‘fictional’ situations.
The thing about the internet is that “the lonely, sad, bad and mad can project thoughts into the ether”. It’s a matter of common sense in most cases, but they’re usually settled well. He has one key piece of advice in handling disputes: if it’s a letter from a senior legal firm, you jump; if it’s from a solicitor it can go further down the pile. You learn the ones that are solid cases quickly.
Just a mere dip in the ocean of intellectual property – a key topic in the world of publishing, and one where understanding is vital.
For all updates and recaps from #SYP2020, click here.